The Supreme Court’s decision in Corps of Engineers v. Hawkes provides a welcome and much-needed avenue for the review of approved jurisdictional determinations (JD) issued by the Corps of Engineers. Hopefully the decision will inhibit the Corps from unfounded or tenuous assertions of jurisdiction over wetlands and other waters of the U.S.
An approved JD is the Corps’ determination regarding the presence or absence of “waters of the United States” such as wetlands. These JDs are extremely important to landowners and developers, as a permit is required from the Corps to place dredged or fill material into U.S. waters.
Prior to the Supreme Court’s ruling, the recipient of an approved JD had three unattractive options: 1. The recipient could seek an administrative appeal; however, the appeal is to the Corps’ division in which the district is located, and the division would merely remand the JD back to the district to correct any perceived errors in the JD. 2. The recipient could begin work or development in the wetlands and subject himself or herself to possible civil and criminal enforcement proceedings, during which the underlying JD could be contested. 3. The recipient could go through the permit process and appeal a final permit; however, obtaining a Section 404 permit from the Corps is costly and time-consuming.
The Hawkes ruling provides an alter-native under which the recipient of an approved JD may seek judicial review of the JD in a federal district court under the Administrative Procedure Act (APA). Under the court’s precedent, an agency decision is a “final agency action” and thus subject to judicial review when it marks the consummation of the decision-making process from which rights and obligations have been determined or from which legal consequences flow.
An approved JD marks the consummation of the decision-making process as the Corps has “ruled definitively” the parcel contains jurisdictional waters. Indeed, the Corps’ own regulations state an approved JD is a final action that remains valid for five years. An approved JD also gives rise to “direct and appreciable legal consequences.” The court noted a “negative JD” (one stating property does not contain jurisdictional waters) creates a five-year “safe harbor” from enforcement actions by EPA and the Corps under the Memorandum of Agreement between the two agencies. On the other hand, a positive JD (one stating property does contain jurisdictional waters) represents a “denial of safe harbor” and is therefore a legal consequence.
The Hawkes decision provides some relief to recipients of positive JDs. In issuing JDs, the Corps routinely asserted jurisdictional over isolated wetlands using the most spurious of facts. In Hawkes itself, the Corps found the wetlands at issue had a significant nexus with a traditional navigable waterway 120 miles away. These types of aberrant decisions can now be contested in an impartial federal district court.
However, the odds remain stacked in the Corps’ favor. First, under APA, the reviewing court is generally limited to the administrative record. As a result, it is critical to have all the facts and expert opinions submitted to the Corps prior to the time the approved JD is issued. Second, the courts generally afford a great deal of deference to the technical and scientific decisions of an agency. Third, the new definition of “waters of the United States” (which is currently stayed by the U.S. Sixth Circuit) expands the definition to include waters and isolated wetlands that are not now included. If it goes into effect, many of the legal and factual arguments against jurisdiction will be mooted.
Nevertheless, the ability to seek judicial review of an approved JD levels the playing field for recipients. The Corps had the power and authority to make virtually unfettered decisions affecting private property. While they can still make those decisions, at least now there is a direct pathway to challenge them.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting, compliance, and due diligence. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, contact John B. King at jbk@bswllp.com or call (225) 381-8014.
